IN RE: DEVA CONCEPTS PRODUCTS LIABILITY LITIGATION

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). A protective order is a court order controlling how information exchanged during discovery may be used and disclosed. The request concerned nonpublic and competitively sensitive information that might be produced in the products-liability litigation. The court found good cause for an appropriately tailored order covering the pretrial phase.

Protective designations

The order permits a producing or designating party to label only reasonably identified portions of discovery material as “Confidential” when they consist of previously undisclosed financial information, ownership or control information concerning a nonpublic company, business or marketing information, personal or intimate information, or another category later given confidential status by the court.

Material may receive the more restrictive “Highly Confidential – Attorneys’ Eyes Only” designation only when it also involves trade secrets, proprietary information, or competitively sensitive business information whose disclosure is highly likely to cause significant harm. The order describes procedures for marking documents, producing redacted copies, designating deposition testimony, and correcting an earlier failure to designate material.

Disclosure and use

Confidential material may be disclosed only to specified recipients, including the parties and their insurers, counsel and litigation support personnel, certain vendors, mediators or arbitrators, identified document recipients, some witnesses, experts, stenographers, and the court. Highly Confidential material may be disclosed to a narrower group, generally excluding the parties and insurers. Several recipients must first receive the order and sign a nondisclosure agreement.

Recipients may use protected material only to prosecute or defend this action and related appeals. The order also requires precautions against unauthorized disclosure, addresses inadvertent disclosure, permits production when required by subpoena or law subject to notice requirements, and requires most recipients to return or destroy the material within 60 days after final disposition, including appeals. Counsel may retain certain archival litigation files, but those files remain subject to the order.

Court filings and challenges

A party filing protected material must publicly file a redacted version and file the unredacted version under seal in accordance with the court’s rules. A party seeking sealing must submit a particularized justification. The order states that the court has not itself determined that any designated material is confidential and may later decide whether confidential treatment is appropriate. It also warns that material introduced at trial is unlikely to remain sealed absent the required findings.

Parties may object to confidentiality designations or request additional disclosure limits. If the parties cannot promptly resolve the dispute, they must bring it to the court under the court’s individual rules; disputed material keeps its designation while the dispute is pending.

Ruling and effect

The parties stipulated and agreed to the terms, and Judge Gregory H. Woods entered the protective order with the words “SO ORDERED.” The order binds the parties and other people with actual notice who are covered by its terms, remains effective after termination of the litigation, and preserves the court’s jurisdiction to enforce the obligations and impose sanctions for contempt. The opinion does not decide the underlying products-liability claims.